December 19th. The Kansas Supreme Court has issued its decision in State v. Howard (No. 98,976). In a unanimous opinion, written by Justice Nuss, the Court affirmed a District Court’s summary dismissal of Carl Howard’s motion to correct an illegal sentence on the grounds of sentence ambiguity.
Howard was convicted of aggravated kidnapping, two counts of rape, and six counts of aggravated criminal sodomy in 1987. At sentencing the Judge misstated the sentence he intended to impose due to the mixture of consecutive and concurrent sentences being handed down. He clarified it with both counsel at the same time he pronounced it. The next day, he reconvened the court to restate the sentence to make sure all understood the previous day’s ruling, and again misstated the sentence. Again, by the end of proceedings he had clarified it and his clarification matched that of the day before and what was entered in the journal. Howard’s sentence was 35 years to life, but based on excerpts from the judge’s misstatements Howard argued the actual sentence imposed was 15 years to life. Howard’s motion to correct the sentence was dismissed by the District Court.
The Court reviewed the summary dismissal on a de novo standard. It adopted this approach because a similar statute to the illegal sentencing one uses a de novo standard when reviewing summary judgements. This in turn is because no new facts have entered the record at the time of a Summary Judgement so the appellate court and District Court are in the same position.
Having reviewed the original sentencing journal and transcripts and reiterating the rule that the sentence announced is the sentence, irrespective of what is in the journal, the Court agreed with the District Court that Howard’s motion was without merit. If a Judge trips over his words and says the wrong thing, even if he does it twice, it does not make the ensuing sentence ambiguous since in this case the Trial Judge ensured that having misspoken everyone understood the sentence to be 35 to life, by the end of both day’s hearings.